No parent, guardian or legal custodian shall be compelled to testify or disclose any communication made in confidence by a child to the parent, guardian or legal custodian, absent an explicit waiver by the child, in any administrative, civil or criminal action or grand jury proceeding other than an action relating to alleged violence or sexual abuse against the child.
No child shall be compelled to testify or disclose any communication made in confidence to the child by a parent, guardian or legal custodian, absent an explicit waiver by the parent, guardian or legal custodian, in any administrative, civil, or criminal action or grand jury proceeding other than an action relating to alleged violence or sexual abuse against the child.
The National Association of Criminal Defense Lawyers proposes enactment of a statutory parent-child communication privilege by Congress and state legislatures. Enactment of such a privilege, which is recognized by statute in some form in Idaho, Massachusetts and Minnesota, and by judicial ruling in New York, would promote and protect the important family values of trust and open communication between parent and child.
Evidentiary privileges, like the parent-child communication, may, depending on the state, be enacted by the legislature, established by the courts, or in the same jurisdictions instituted by either. Federal courts are authorized under the Federal Rules of Evidence to recognize privileges in accordance with common law. Indeed, the United States Supreme Court has gone beyond traditional common law privileges and has recently recognized an evidentiary privilege for communications between a social worker psychotherapist and a patient.1
Many courts have felt, however, that the legislature is the appropriate starting point for recognition of additional privileges. The United States Court of Appeals for the Third Circuit recently, by a 2-1 vote, declined to establish judicially a parent-child privilege, preferring to leave the issue for legislative determination. Quoting Justice Scalia's dissent in Jaffee v. Redmond, the court wrote, "The legislature is institutionally better equipped to perform the balancing of the compelling policy issues requiring deciding whether the parent-child privilege is in the best interests of society."2
NACDL believes that, however established, a parent-child privilege is in the best interests of society and should be established quickly. The most expeditious and efficient way to establish such a privilege is by congressional and state legislative action.
The importance of open communication between a parent and child is beyond debate. Indeed, the Supreme Court stressed in Wisconsin v. Yoder, "The most important influence is the child's relationship to his family. . . . It is primarily for this reason that society has such a strong interest in fostering open communication between parent and child."3
Forced disclosure of confidential communications between children and parents not only destroys the trust between parent and child necessary to foster open communication, it pits a parent against a child in a court of law. As the father of an 18-year old who was never charged with a crime but was forced to testify in a grand jury about his son's confidential communications to him said: "I will be living under a cloud in which if my son comes to talk to me or talks to me . . . I would have to stop him and say 'you can't talk to me about that. . . .' It's no way for anybody to live in this country."3
The proposed statute is a limited one, and should have little effect on law enforcement goals. It protects only confidential communications between a child and a parent or guardian. It will protect the parent from being compelled to disclose in any official proceeding what the child told the parent unless the child expressly permits the parent to testify. Similarly, it will protect the child from being compelled to disclose what the parent told the child unless the parent expressly permits the child to testify. It will, however, allow the parent or child the option to disclose the communication over the objection of the other. Only confidential communications are covered and, therefore, the statute will not apply when the communication is made in the presence of others. Further, communications made in the furtherance of a crime will not be protected. The proposed statute also explicitly states that the privilege does not apply when the child is a victim of violence or abuse. The statute does not, however, limit the privilege to communications with minors.
The proposed statute, a relatively modest change in the law, is one that should be palatable to reasonable prosecutors. This legislation, which has been under consideration for approximately one year, is not designed to affect any particular case or any particular prosecutor.
The legislation was drafted by NACDL Secretary Lawrence S. Goldman, and members Joseph Bondy, Donna Newman and Avrom Robin, all of New York City.
Notes
1. Jaffee v. Redmond, 518 U.S. 1 (1996).2. In re Grand Jury, 103 F.3d 1140, 1154 (3d Cir. 1997).
3. 406 U.S. 205, 232 (1972).
4. In re Grand Jury, 103 F.3d 1140, 1143.